Why the FISA Amendments Act Is Unconstitutional

The FISA Amendments Act gives the government nearly unfettered access to Americans’ international communications. Government surveillance that sweeps up the communications of U.S. citizens and residents should be conducted in a manner that comports with the Constitution, and in particular with the Fourth Amendment, which prohibits “general warrants” and unreasonable searches. The FISA Amendments Act allows the government to engage in mass acquisition of U.S. citizens’ and residents’ international communications with virtually no restrictions. Some of the main problems with the law are:

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Unidentified Targets
The government can intercept U.S. residents’ international telephone and email communications without having to even name the people or groups it is monitoring or show its targets are suspected of wrongdoing or connected to terrorism . The target could be a human rights activist, a media organization, a geographic region, or even a country. Nothing requires the government to identify its surveillance targets at all.

Anywhere, USA
The government can intercept U.S. communications without having to identify the facilities, phone lines, email addresses, or locations to be monitored. Theoretically, the government could use the new law to collect all phone calls between the U.S. and London, simply by saying to the FISA court that it was targeting someone abroad and that a significant purpose of its new surveillance program is to collect foreign intelligence information.

No Judicial Oversight
Our system is one of checks and balances. The constitution requires real judicial oversight to protect people who get swept up in government surveillance. The new law gives the FISA court an extremely limited role in overseeing the government’s surveillance activities. Rather than reviewing individualized surveillance applications, the FISA court is relegated to reviewing only the government’s “targeting” and “minimization” procedures. It has no role in overseeing how the government is actually using its surveillance power. Even if the FISA court finds the government’s procedures deficient, the government can disregard this and continue illegal surveillance while appealing the court’s determination.

No Limits There are no real limits on how the government uses, retains, or disseminates the information that it collects. The law is silent about what the government can keep and what it has to get rid of. It fails to place real limits on how information can be disseminated and to whom. This means the government can create huge databases that contain information about U.S. persons obtained without warrants and then search these databases at a later point.

Not Just Terrorism
The law does not limit government surveillance to communications relating to terrorism. Journalists, human rights researchers, academics, and attorneys routinely exchange information by telephone and e-mail that relates to the foreign affairs of the U.S. (Think, for example, of a journalist who is researching the “surge” in Iraq, or of an academic who is writing about the policies of the Chávez government in Venezuela, or of an attorney who is negotiating the repatriation of a prisoner held at Guantánamo Bay.) The Bush administration has argued that the new law is necessary to address the threat of terrorism, but the truth is that the law sweeps much more broadly and implicates all kinds of communications that have nothing to do with terrorism or criminal activity of any kind.

Purely Domestic
The law gives the government access to some communications that are purely domestic. The government can acquire communications so long as there is uncertainty about the location of the sender or recipient. A reasonable law would have required any uncertainty to be resolved in favor of the privacy rights of U.S. citizens and residents, but this law requires uncertainty to be resolved in favor of the government. Thousands or even millions of purely domestic communications are likely to be swept up as a result.

Immunity for LawbreakersThe law immunizes the telecoms that participated in the Bush administration’s illegal warrantless wiretapping program. Telecommunication corporations that violated the law and allowed the government to trample the privacy rights of thousands of Americans should be held accountable for their activities. Letting them off the hook only invites further abuse in the future.